question of fundamental error in Florida

2015Appellant’s claim that the trial court “violated the prohibition against double jeopardy raises a question of fundamental error that can be raised for first time on direct appeal.” Grites v. State, 959 So.2d 1265, 1267 (Fla. 5th DCA 2007) (citing Scarola v. State, 889 So.2d 108 (Fla. 5th DCA 2004)).

2015Bailey v. State, 21 So.3d 147, 149 (Fla. 5th DCA 2009) (citing Crites v. State, 959 So.2d 1265, 1267 (Fla. 5th DCA 2007)).

2015Appellant’s claim that the trial court “violated the prohibition against double jeopardy raises a question of fundamental error that can be raised for first time on direct appeal.” Grites v. State, 959 So.2d 1265, 1267 (Fla. 5th DCA 2007) (citing Scarola v. State, 889 So.2d 108 (Fla. 5th DCA 2004)).

2009See Crites v. State, 959 So.2d 1265, 1267 (Fla. 5th DCA 2007), citing Scarola v. State, 889 So.2d 108 , 109— 10 (Fla. 5th DCA 2004) (en banc).

2008However, this Court has repeatedly held that counsel is not ineffective for failing to raise errors that were not preserved "and do not present a question of fundamental error." Valle v. Moore, 837 So.2d 905, 907-08 (Fla.2002).

2006Valle v. Moore, 837 So.2d 905 (Fla.2002).

2017However, this Court may still review the issue as to Count II because “such a claim raises a question of fundamental error that can be raised for the first time on direct appeal.” Bailey v. State, 21 So.3d 147, 149 (Fla. 5th DCA 2009) (citations omitted). .

2017However, this Court may still review the issue as to Count II because “such a claim raises a question of fundamental error that can be raised for the first time on direct appeal.” Bailey v. State, 21 So. 3d 147, 149 (Fla. 5th DCA 2009) (citations omitted). 3 both crimes by using a single homicide.” Id. at 1074-75. “[T]here can be but one penalty imposed for causing the death of a single victim.” Id. at 1074; see also Houser, 474 So. 2d at 1196-97 (holding that defendant cannot be punished for both DWI manslaughter and vehicular homicide for a single death); Thomas v. State, 837 So. 2d 443, 447

2016See Downs v. Moore, 801 So. 2d 906, 910 (Fla. 2001) (stating that appellate counsel can be deemed ineffective for failing to raise an issue on appeal that presents a question of fundamental error).

2004Further, we have also held that "appellate counsel cannot be considered ineffective under [ Strickland ] for failing to raise issues that are procedurally barred because they were not properly raised during the trial court proceedings and do not present a question of fundamental error." Downs v. Moore, 801 So.2d 906, 910 (Fla.2001).

2006See Mordenti v. State, 630 So.2d 1080 (Fla.1994).

2005See Mordenti v. State, 630 So.2d 1080 (Fla.1994) (absent fundamental error, claims not raised at trial are procedurally barred). [14] Johnson was convicted of the attempted first-degree murder of Marshall King on August 8, 1991. [15] Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000).

2005See Lippman v. State, 633 So.2d 1061, 1064-65 (Fla.1994) (holding that a double jeopardy claim raises a question of fundamental error which is not procedurally barred when raised initially in rule 3.850 proceedings).

2005See Lippman v. State, 633 So.2d 1061, 1064-65 (Fla.1994) (holding that a double jeopardy claim raises a question of fundamental error which is not procedurally barred when raised initially in rule 3.850 proceedings).

2002See Rutherford, 774 So.2d at 643 .

2001See Rutherford, 774 So.2d at 643 ; Robinson v. Moore, 773 So.2d 1, 4 (Fla.2000); Roberts v. State, 568 So.2d 1255 (Fla.1990) (holding that appellate counsel's failure to raise a claim which was not preserved for review and which does not present a question of fundamental error does not constitute ineffective performance warranting relief).

2001See Roberts v. State, 568 So.2d 1255 (Fla.1990) (holding that appellate counsel's failure to raise a claim which was not preserved for review and which does not present a question of fundamental error does not constitute ineffective performance warranting relief).

2001See Rutherford, 774 So.2d at 643 ; Robinson v. Moore, 773 So.2d 1, 4 (Fla.2000); Roberts v. State, 568 So.2d 1255 (Fla.1990) (holding that appellate counsel's failure to raise a claim which was not preserved for review and which does not present a question of fundamental error does not constitute ineffective performance warranting relief).

2017However, this Court may still review the issue as to Count II because “such a claim raises a question of fundamental error that can be raised for the first time on direct appeal.” Bailey v. State, 21 So. 3d 147, 149 (Fla. 5th DCA 2009) (citations omitted). 3 both crimes by using a single homicide.” Id. at 1074-75. “[T]here can be but one penalty imposed for causing the death of a single victim.” Id. at 1074; see also Houser, 474 So. 2d at 1196-97 (holding that defendant cannot be punished for both DWI manslaughter and vehicular homicide for a single death); Thomas v. State, 837 So. 2d 443, 447

2017However, this Court may still review the issue as to Count II because “such a claim raises a question of fundamental error that can be raised for the first time on direct appeal.” Bailey v. State, 21 So. 3d 147, 149 (Fla. 5th DCA 2009) (citations omitted). 3 both crimes by using a single homicide.” Id. at 1074-75. “[T]here can be but one penalty imposed for causing the death of a single victim.” Id. at 1074; see also Houser, 474 So. 2d at 1196-97 (holding that defendant cannot be punished for both DWI manslaughter and vehicular homicide for a single death); Thomas v. State, 837 So. 2d 443, 447

2015“Once a sentence has already been served, even if it is an illegal sentence or an invalid sentence, the trial court loses jurisdiction and violates the Double Jeopardy Clause by reasserting jurisdiction and resentencing the defendant to an increased sentence.” Maybin v. State, 884 So.2d 1174, 1175 (Fla. 2d DCA 2004) (citing Sneed v. State, 749 So.2d 545 (Fla. 4th DCA 2000)).

2011See Wright v. State, 47 So.3d 972 , 973 n. 1 (Fla. 4th DCA 2010) (addressing an argument that the trial court lacked jurisdiction when the alleged violation occurred after the probationary term ended).

2006See Valle v. Moore, 837 So.2d 905, 907-08 (Fla.2002); see also Coney v. State, 937 So.2d 255, 256 (Fla. 3d DCA 2006).

2005See Mordenti v. State, 630 So.2d 1080 (Fla.1994) (absent fundamental error, claims not raised at trial are procedurally barred). [14] Johnson was convicted of the attempted first-degree murder of Marshall King on August 8, 1991. [15] Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000).

2005See Mordenti v. State, 630 So.2d 1080 (Fla.1994) (absent fundamental error, claims not raised at trial are procedurally barred). [14] Johnson was convicted of the attempted first-degree murder of Marshall King on August 8, 1991. [15] Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000).

2001See id.

2001See Rutherford, 774 So.2d at 643 ; Robinson v. Moore, 773 So.2d 1, 4 (Fla.2000); Roberts v. State, 568 So.2d 1255 (Fla.1990) (holding that appellate counsel's failure to raise a claim which was not preserved for review and which does not present a question of fundamental error does not constitute ineffective performance warranting relief).

2001See Rutherford, 774 So.2d at 643 ; Robinson v. Moore, 773 So.2d 1, 4 (Fla.2000); Roberts v. State, 568 So.2d 1255 (Fla.1990) (holding that appellate counsel's failure to raise a claim which was not preserved for review and which does not present a question of fundamental error does not constitute ineffective performance warranting relief).

2000This instruction, the prosecutor's repeated misstatements of the law and the obvious jury confusion deprived Harvey of a fair trial so as to constitute fundamental error which requires reversal even in the absence of timely objections."); see also Eberhardt v. State, 550 So.2d 102 (Fla. 1st DCA 1989) (finding prosecutor's argument "highly improper" both because it misstated the law on the intoxication defense and appealed to jury's sympathy but not reaching the question of fundamental error due to reversal on other grounds); cf. Tuff v. State, 509 So.2d 953 (Fla. 4th DCA 1987) (reversing based

1987Turning to the question of fundamental error, Reynolds v. State, 429 So.2d 1331, 1333 (Fla. 5th DCA 1983), specifically states: "An erroneous application of the three year mandatory minimum sentence would constitute a fundamental sentencing error." Accord, Lawson v. State, 400 So.2d 1053 (Fla. 2d DCA 1981) (unlawful imposition of three-year minimum sentences upon defendant constitutes fundamental error); Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984) (improper imposition of a mandatory minimum sentence, because of its inherent potential of causing or requiring a defendant to be incarcer